LENDINGCLUB CORPORATION AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT APRIL 14, 2010
Exhibit 99.4
Execution Version
LENDINGCLUB CORPORATION
AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
APRIL 14, 2010
LENDINGCLUB CORPORATION
AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
This Amended and Restated Right of First Refusal and Co-Sale Agreement (this
“Agreement”) is made and entered into as of this 14th day of April, 2010, by and among
LendingClub Corporation, a Delaware corporation (the “Company”), each of the persons and
entities listed on Exhibit A hereto (the “Investors”) and each of the persons listed on Exhibit B
hereto (each referred to herein as a “Key Holder” and collectively as the “Key Holders”).
Recitals
Whereas, the Key Holders are the beneficial owners of an aggregate of 4,355,000
shares of the Common Stock of the Company;
Whereas, certain Investors (the “Prior Investors”) are holders of outstanding shares
of the Company’s Series A Preferred Stock (the “Series A Stock”) and Series B Preferred Stock (the
“Series B Stock”) and have also been granted certain first refusal and co-sale rights under that
certain Amended and Restated Right of First Refusal and Co-Sale Agreement by and among the Company
and the Prior Investors dated as of March 13, 2009 (the “Prior Agreement”);
Whereas, certain Investors (the “Series C Investors”) have agreed to purchase shares
of the Company’s Series C Preferred Stock (the “Series C Stock” and together with the Series A
Stock and the Series B Stock, the “Preferred Stock”) pursuant to that certain Series C Preferred
Stock Purchase Agreement (the “Purchase Agreement”) of even date herewith (the “Financing”);
Whereas, the Company, the Prior Investors, and the Key Holders hereby agree that the
Prior Agreement shall be amended and restated pursuant to Section 6.3 of the Prior Agreement, in
its entirety, by this Agreement, and the parties hereto desire to enter into this Agreement in
order to grant the Investors certain rights of first refusal and co-sale; and
Whereas, the obligations in the Purchase Agreement are conditioned upon the execution
and delivery of this Agreement.
Now, Therefore, in consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree
hereto as follows:
Agreement
1. Definitions.
1.1 “fully-diluted capitalization” means the number of shares of Common Stock deemed to be
outstanding that is the sum of (A) the number of shares of Common Stock outstanding, (B) the
number of shares of Common Stock into which the then outstanding shares
of Preferred Stock could be converted if fully converted, (C) the number of shares of capital
stock of the Company which are issuable upon the exercise or conversion of all other rights,
options and convertible securities outstanding on the day immediately preceding the given date and
(D) the number of unallocated shares of Common Stock reserved for issuance pursuant to options,
warrants or other Common Stock purchase rights issuable pursuant to the Option Pool (as defined in
the Company’s Amended and Restated Certificate of Incorporation).
1.2 “Key Holder Stock” shall mean shares of the Company’s capital stock now owned or
subsequently acquired by the Key Holders by gift, purchase, dividend, option exercise or any other
means whether or not such securities are only registered in a Key Holder’s name or beneficially or
legally owned by such Key Holder, including any interest of a spouse in any of the Key Holder
Stock, whether that interest is asserted pursuant to marital property laws or otherwise. The
number of shares of Key Holder Stock owned by the Key Holders as of the date hereof is set forth on
Exhibit B, which Exhibit may be amended from time to time by the Company to reflect changes in the
number of shares owned by the Key Holders, but the failure to so amend shall have no effect on such
Key Holder Stock being subject to this Agreement.
1.3 “Investor Stock” shall mean the shares of the Company’s Common Stock or Preferred Stock
now owned or subsequently acquired by the Investors whether or not such securities are only
registered in an Investor’s name or beneficially or otherwise legally owned by such Investor.
1.4 For purposes of this Agreement, the term “Transfer” shall include any sale, assignment,
encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by request, devise or
descent, or other transfer or disposition of any kind, including, but not limited to, transfers to
receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees
for the benefit of creditors, whether voluntary or by operation of law, directly or indirectly, of
any of the Key Holder Stock.
2. Transfers by a Key Holder.
2.1 Notice of Transfer. If a Key Holder proposes to Transfer any shares of Key Holder Stock,
then the Key Holder shall promptly give written notice (the “Notice”) simultaneously to the Company
and to each of the Investors. The Notice shall describe in reasonable detail the material terms of
the proposed Transfer including, without limitation, the number of shares of Key Holder Stock to be
transferred, the nature of such Transfer, the consideration to be paid, and the name and address of
each prospective purchaser or transferee. In the event that the Transfer is being made pursuant to
the provisions of Section 3.1, the Notice shall state under which clause of Section 3.1 the
Transfer is being made.
2.2 Foundation Capital Right of First Refusal. For a period of ten (10) days following
receipt of any Notice described in Section 2.1, Foundation Capital VI, L.P. (“Foundation”) shall
have the right to purchase all or a portion of the Key Holder Stock subject to such Notice on the
same terms and conditions as set forth therein (the “Foundation ROFR Right”) prior to the Company’s
purchase right set forth in Section 2.3. The Foundation ROFR Right shall be exercised by written
notice signed by a duly authorized representative of Foundation (the “Foundation Notice”) and
delivered to the Key Holder within such ten (10) day
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period. Foundation shall effect the purchase of the Key Holder Stock, including payment of
the purchase price, not more than ten (10) days after delivery of the Foundation Notice, and at
such time the Key Holder shall deliver to Foundation the certificate(s) representing the Key Holder
Stock to be purchased by Foundation, each certificate to be properly endorsed for transfer. The
Company, and the Key Holders agree that the Foundation ROFR Right shall supersede the right of
first refusal provisions of any other agreements to which the Key Holders are a party. The
Foundation ROFR Right shall terminate upon Foundation and its affiliated persons or entities under
common management initially holding equity securities of the Company and/or other securities
convertible into equity securities of the Company representing at least fifteen percent (15%) of
the fully diluted capitalization of the Company, including securities of the Company purchased or
acquired (or to be purchased or acquired) pursuant to Foundation exercising the Foundation ROFR
Right or the Foundation Unsubscribed Right (as defined in that certain Amended and Restated
Investor Rights Agreement dated of even date herewith).
2.3 Company Right of First Refusal. In the event that Foundation does not elect to purchase
all of the Key Holder Stock available pursuant to Section 2.2, the Key Holder shall promptly give
written notice (the “Second Notice”) to the Company and each of the Investors, which shall set
forth the number of shares of Key Holder Stock to be transferred that were not purchased by
Foundation and that shall include the terms of the Foundation Notice set forth in Section 2.2. The
Company shall then have the right, exercisable upon written notice to the Key Holder (the “Company
Notice”) within ten (10) days after the delivery of the Second Notice, to purchase shares of the
Key Holder Stock subject to the Second Notice and on the same terms and conditions as set forth
therein. The Company shall effect the purchase of the Key Holder Stock, including payment of the
purchase price, not more than ten (10) days after delivery of the Company Notice, and at such time
the Key Holder shall deliver to the Company the certificate(s) representing the Key Holder Stock to
be purchased by the Company, each certificate to be properly endorsed for transfer. The Key Holder
Stock so purchased shall thereupon be cancelled and cease to be issued and outstanding shares of
the Company’s Common Stock. Notwithstanding anything to the contrary contained in Sections 2.2 and
2.3, in the event a Key Holder proposes to Transfer any shares of Key Holder Stock after the
termination of the Foundation ROFR Right pursuant to the last sentence of Section 2.2, upon any
such proposed Transfer (i) the Company shall have the initial purchase right to such Key Holder
Stock and (ii) the Company’s purchase right shall be exercisable by written notice signed by an
officer of the Company (the “Company Notice”) and delivered to the Key Holder within a thirty (30)
day period following the receipt of any such Notice described in Section 2.1.
2.4 Investor Right of First Refusal.
(a) In the event that Foundation and/or the Company do not elect to purchase all of the Key
Holder Stock available pursuant to Section 2.2 and/or Section 2.3, respectively, the Key Holder
shall promptly give written notice (the “Third Notice”) to each of the Investors, which shall set
forth the number of shares of Key Holder Stock that were not purchased by Foundation and/or the
Company and that shall include the terms of the Foundation Notice set forth in Section 2.1 and/or
the Company Notice set forth in Section 2.2. Each Investor shall then have the right, exercisable
upon written notice to the Key Holder (the “Investor Notice”) within ten (10) days after the
receipt of the Third Notice, to purchase its pro rata share of the Key Holder Stock subject to the
Third Notice and on the same terms and conditions as set forth
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therein; provided, however, that for so long as the Foundation ROFR Right set forth in Section
2.2 hereof shall remain in effect, Foundation shall not have the right to purchase any Key Holder
Stock pursuant to this Section 2.4 (it being understood that, after the termination of the
Foundation ROFR Right pursuant to the last sentence of Section 2.2, Foundation shall be treated as
an Investor pursuant to this Section 2.4(a)). Except as set forth in Section 2.4(c), the Investors
who so exercise their rights (the “Participating Investors”) shall effect the purchase of the Key
Holder Stock, including payment of the purchase price, not more than ten (10) days after delivery
of the Investor Notice, and at such time the Key Holder shall deliver to the Participating
Investors the certificate(s) representing the Key Holder Stock to be purchased by the Participating
Investors, each certificate to be properly endorsed for transfer.
(b) Each Investor’s pro rata share shall be equal to the product obtained by multiplying
(i) the aggregate number of shares of Key Holder Stock covered by the Third Notice and (ii) a
fraction, the numerator of which is the number of shares of Common Stock issued or issuable upon
the conversion or exercise of Preferred Stock or other rights to acquire shares of Common Stock
held by the Investor at the time of the Notice, and the denominator of which is the total number of
shares of Common Stock issued or issuable upon the conversion or exercise of Preferred Stock or
other rights to acquire shares of Common Stock at the time of the Notice held by all Investors;
provided, however, that for so long as the Foundation ROFR Right set forth in Section 2.2 hereof
shall remain in effect, any shares of Common Stock issued or issuable upon the conversion or
exercise of Preferred Stock or other rights to acquire shares of Common Stock at the time of the
Third Notice held by Foundation shall not be included in the denominator of such fraction.
(c) In the event that not all of the Investors elect to purchase their pro rata share of the
Key Holder Stock pursuant to Section 2.4(a), then the Key Holder shall promptly give written notice
to each of the Participating Investors (the “Overallotment Notice”), which shall set forth the
number of shares of Key Holder Stock not purchased by the other Investors, and shall offer such
Participating Investors the right to acquire such unsubscribed shares. Each Participating Investor
shall have five (5) days after receipt of the Overallotment Notice to deliver a written notice to
the Key Holder (the “Participating Investors Overallotment Notice”) indicating the number of
unsubscribed shares that such Participating Investor desires to purchase, and each such
Participating Investor shall be entitled to purchase such number of unsubscribed shares on the same
terms and conditions as set forth in the Third Notice. In the event that the Participating
Investors desire, in the aggregate, to purchase in excess of the total number of available
unsubscribed shares, then the number of unsubscribed shares that each Participating Investor may
purchase shall be reduced on a pro rata basis. For purposes of this Section 2.4(c) the denominator
described in clause (ii) of subsection 2.4(b) above shall be the total number of shares of Common
Stock issued or issuable upon the conversion or exercise of Preferred Stock or other rights to
acquire shares of Common Stock held by the Participating Investors at the time of the Investor
Notice. The Participating Investors shall then effect the purchase of the Key Holder Stock,
including payment of the purchase price, not more than ten (10) days after delivery of the
Participating Investors Overallotment Notice, and at such time, the Key Holder shall deliver to the
Investors the certificates representing the Key Holder Stock to be purchased by the Participating
Investors, each certificate to be properly endorsed for transfer.
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2.5 Right of Co-Sale.
(a) In the event Foundation, the Company and the Investors fail to timely exercise their
respective rights to purchase all of the Key Holder Stock subject to Sections 2.2, 2.3 and 2.4
hereof, the Key Holder shall deliver to the Company and each Investor written notice (the “Co-Sale
Notice”) that each Investor shall have the right, exercisable upon written notice to such Key
Holder with a copy to the Company within fifteen (15) days after receipt of the Co-Sale Notice, to
participate in such Transfer on the same terms and conditions. Such notice shall indicate the
maximum number of shares of Investor Stock determined under Section 2.5(b) that such Investor may
elect to sell under his or her right to participate. To the extent one or more of the Investors
exercise such right of participation in accordance with the terms and conditions set forth below,
the number of shares of Key Holder Stock that such Key Holder may sell in the transaction shall be
correspondingly reduced.
(b) Each Investor may sell all or any part of that number of shares equal to the product
obtained by multiplying (i) the aggregate number of shares of Key Holder Stock covered by the
Co-Sale Notice and not purchased by Foundation, the Company or its assignees or the Investors
pursuant to Section 2.2, 2.3 or 2.4 by (ii) a fraction, the numerator of which is the number of
shares of Common Stock issued or issuable upon the conversion or exercise of Preferred Stock or
other rights to acquire shares of Common Stock held by such Investor at the time of the Notice and
the denominator of which is the total number of shares of Common Stock held by such Key Holder
(excluding shares purchased by Foundation, the Company and/or the Investors pursuant to Sections
2.2, 2.3 and 2.4) plus the number of shares of Common Stock issued or issuable upon the conversion
or exercise of Preferred Stock or other rights to acquire shares of Common Stock held by all
Investors at the time of the Notice. If not all of the Investors elect to sell their shares of
Common Stock proposed to be transferred within said fifteen (15) day period, then the Key Holder
shall promptly notify in writing the Investors who do so elect and shall offer such Investors the
additional right to participate in the sale of such additional shares of Key Holder Stock proposed
to be transferred on the same percentage basis as set forth above in this Section 2.5(b); provided,
however, that any issued or issuable shares held by Investors who are not Co-Sale Participants
shall not be included in the denominator of such fraction. The Investors shall have five
(5) days after receipt of such notice to notify the Key Holder in writing with a copy to the
Company of its election to sell all or a portion thereof of the unsubscribed shares.
(c) Each Investor who elects to participate in the Transfer pursuant to this Section 2.5 (a
“Co-Sale Participant”) shall effect its participation in the Transfer by promptly delivering to
such Key Holder for transfer to the prospective purchaser one or more certificates, properly
endorsed for transfer, which represent:
(i) the type and number of shares of Common Stock which such Co-Sale Participant elects to
sell; or
(ii) that number of shares of Preferred Stock which is at such time convertible into the
number of shares of Common Stock which such Co-Sale Participant elects to sell; provided, however,
that if the prospective purchaser objects to the delivery of Preferred Stock in lieu of Common
Stock, such Co-Sale Participant shall convert such Preferred Stock into
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Common Stock and deliver Common Stock as provided in Section 2.5(c)(i) above. The Company
agrees to make any such conversion concurrent with and contingent upon the actual transfer of such
shares to the purchaser.
(d) The stock certificate or certificates that the Co-Sale Participant delivers to such Key
Holder pursuant to Section 2.5(c) shall be transferred to the prospective purchaser in consummation
of the sale of the Common Stock pursuant to the terms and conditions specified in the Co-Sale
Notice, and the Key Holder shall concurrently therewith remit to such Co-Sale Participant that
portion of the sale proceeds to which such Co-Sale Participant is entitled by reason of its
participation in such sale. To the extent that any prospective purchaser or purchasers prohibits
such assignment or otherwise refuses to purchase shares or other securities from a Co-Sale
Participant exercising its rights of co-sale hereunder, such Key Holder shall not sell to such
prospective purchaser or purchasers any Key Holder Stock unless and until, simultaneously with such
sale, such Key Holder shall purchase such shares or other securities from such Co-Sale Participant
on the same terms and conditions specified in the Co-Sale Notice.
(e) The exercise or non-exercise of the rights of any Investor hereunder to participate in one
or more Transfers of Key Holder Stock made by any Key Holder shall not adversely affect his right
to participate in subsequent Transfers of Key Holder Stock subject to Section 2.
(f) To the extent that the Investors do not elect to participate in the sale of the Key Holder
Stock subject to the Co-Sale Notice, such Key Holder may, not later than sixty (60) days following
delivery to the Company of the Co-Sale Notice, enter into an agreement providing for the closing of
the Transfer of such Key Holder Stock covered by the Co-Sale Notice within thirty (30) days of such
agreement on terms and conditions not materially more favorable to the transferor than those
described in the Co-Sale Notice. Any proposed Transfer on terms and conditions materially more
favorable than those described in the Co-Sale Notice, as well as any subsequent proposed Transfer
of any of the Key Holder Stock by a Key Holder, shall again be subject to the first refusal and
co-sale rights of the Company and/or Investors and shall require compliance by a Key Holder with
the procedures described in this Section 2.
(g) The Key Holder hereby agrees that, in the event that any of the holders of Common Stock
listed on Schedule I attached hereto (each, a “Seed Investor) who have previously been
granted co-sale rights, wishes to exercise such right, any such additional shares of Common Stock
held by such Seed Investors will solely reduce the aggregate number of shares of Key Holder Stock
that the Key Holder may sell after the participation of the Investors as set forth in this Section
2. For the avoidance of doubt, the number of shares of Common Stock issued or issuable upon the
conversion or exercise of the Preferred Stock held by Co-Sale Participants shall not be reduced as
a result of the inclusion of such Seed Investors in the Transfer.
3. Exempt Transfers.
3.1 Notwithstanding the foregoing, the first refusal and co-sale rights of the Company and/or
the Investors set forth in Section 2 above shall not apply to (i) any transfer or transfers by a
Key Holder which in the aggregate, over the term of this Agreement, including any
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amendments hereto, amount to no more than five percent (5%) of the shares of Key Holder Stock
held by a Key Holder as of the date hereof (as adjusted for stock splits, dividends and the like),
(ii) any transfer without consideration to the Key Holder’s ancestors, descendants or spouse or to
trusts for the benefit of such persons or the Key Holder, (iii) any transfer or transfers by a Key
Holder to another Key Holder (the “Transferee-Key Holder”) so long as the Transferee-Key Holder is,
at the time of the transfer, employed by or acting as a consultant or director of the Company;
provided that in the event of any transfer made pursuant to one of the exemptions provided by
clauses (i), (ii), and (iii), (A) the Key Holder shall inform the Investors of such pledge,
transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into a
written agreement to be bound by and comply with all provisions of this Agreement, as if it were an
original Key Holder hereunder, including without limitation Section 2. Such transferred Key Holder
Stock shall remain “Key Holder Stock” hereunder, and such pledgee, transferee or donee shall be
treated as the “Key Holder” for purposes of this Agreement, except that such transferee or donee
may not transfer shares pursuant to Section 3.1(i) hereof.
3.2 Notwithstanding the foregoing, the provisions of Section 2 shall not apply to the sale of
any Key Holder Stock to the public pursuant to a registration statement filed with, and declared
effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended
(the “Securities Act”).
3.3 Subject to the Foundation ROFR Right, this Agreement is subject to, and shall in no manner
limit the right which the Company may have to repurchase securities from the Key Holder pursuant to
(i) a stock restriction agreement or other agreement between the Company and the Key Holder and
(ii) any right of first refusal set forth in the Bylaws of the Company.
3.4 The Company agrees to assign to Foundation the Company’s right of first refusal to
purchase shares of the Company’s Common Stock from Xxxxxx Xxxxxxxxx (“Dmitriev”) or Bracket Media
Group, LLC (“Bracket”) pursuant to certain Stock Subscription Agreements by and between the Company
and each of Dmitriev and Bracket, respectively, as such agreements have been amended to date (each
a “Subscription Agreement”). In addition, the Company hereby agrees that, notwithstanding any
provision to the contrary contained in a Subscription Agreement, that any shares purchased by
Foundation from Dmitriev or Bracket pursuant to the assignment of the Company’s right of first
refusal will not be cancelled on the books and records of the Company and will be promptly
transferred and, if necessary, issued by the Company (or its transfer agent) upon the Company’s
receipt of notice of the closing of the purchase and sale of the shares by Foundation from Bracket
or Dmitriev, as the case may be. Foundation shall have the option, but not the obligation, to
exercise the right set forth herein. To the extent that the exercise of this right by Foundation
would result in its fully-diluted ownership interest in the Company exceeding fifteen (15%),
Foundation shall be limited to exercising this right, and Foundation’s Unsubscribed Right and ROFR
Right, to the extent that they collectively result in Foundation’s fully-diluted ownership equaling
fifteen (15%). This right will terminate simultaneously with the termination of Foundation’s
Unsubscribed Right and ROFR Right.
4. Prohibited Transactions; Prohibited Transfers; Voidability.
4.1 Call Option. In the event of a prohibited transfer in violation of Sections 2.2 and/or
2.3 hereof (a “Prohibited Transaction”), the Company and/or Investors shall have the
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option, in addition to all other remedies it may have, to send to such Key Holder the purchase
price for such Key Holder Stock as is herein specified and transfer to the name of the Company or
such Investor (or request that the Company effect such transfer in the name of an Investor) on the
Company’s books the certificate or certificates representing the Key Holder Stock to be
transferred. In the event of a Prohibited Transaction, the Company and/or Investors shall be
entitled to purchase from the Key Holder the number of shares that the Company and/or Investors
would be entitled to purchase had such Prohibited Transaction been effected in accordance with
Sections 2.2 and/or 2.3, on the following conditions:
(a) the price per share at which the shares are to be purchased by the Company and/or Investor
shall be equal to the price per share paid to such Key Holder by the third party purchaser or
purchasers of such Key Holder Stock that is subject to the Prohibited Transaction; and
(b) the Key Holder effecting such Prohibited Transaction shall reimburse the Company and/or
Investor for any expenses, including legal fees and expenses, incurred in effecting such purchase.
4.2 Put Option.
(a) In the event that a Key Holder should Transfer any Key Holder Stock in contravention of
the co-sale rights of each Investor under Section 2.5 of this Agreement (a “Prohibited Transfer”),
each Investor, shall have the put option provided below, and such Key Holder shall be bound by the
applicable provisions of such option.
(b) In the event of a Prohibited Transfer, each Investor shall have the right to sell to such
Key Holder the type and number of shares of Common Stock equal to the number of shares each
Investor would have been entitled to Transfer to the purchaser under Section 2.5 hereof had the
Prohibited Transfer been effected pursuant to, and in compliance with, the terms hereof. Such sale
shall be made on the following terms and conditions:
(i) The price per share at which the shares are to be sold to the Key Holder shall be equal to
the price per share paid by the purchaser to such Key Holder in such Prohibited Transfer. The Key
Holder shall also reimburse each Investor for any and all fees and expenses, including legal fees
and expenses, incurred in connection with the exercise or the attempted exercise of the Investor’s
rights under Section 2.5.
(ii) Within ninety (90) days after the date on which an Investor received notice of the
Prohibited Transfer, such Investor shall, if exercising the option created hereby, deliver to the
Key Holder the certificate or certificates representing the shares to be sold, each certificate to
be properly endorsed for transfer.
(iii) Such Key Holder shall, upon receipt of the certificate or certificates for the shares to
be sold by an Investor, pursuant to this Section 4.2, pay the aggregate purchase price therefor and
the amount of reimbursable fees and expenses, as specified in Section 4.2(b)(i), in cash or by
other means acceptable to the Investor.
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4.3 Voidability of Transfer. Notwithstanding the foregoing, any purported Transfer by a Key
Holder of Key Holder Stock in violation of Section 2 and/or Section 3 hereof shall be voidable at
the option of the holders of sixty-five percent (65%) of the Investor Stock if the holders of
sixty-five percent (65%) of the Investor Stock do not elect to exercise the call or put option set
forth in this Section 4, and the Company agrees it will not effect such a transfer nor will it
treat any alleged transferee as the holder of such shares without the written consent of the
holders of a majority of the Investor Stock.
4.4 Limitation of Remedies. In the event that any Investor chooses to exercise either of the
options set forth in Sections 4.1 or 4.2 with respect to a particular Prohibited Transaction or
Prohibited Transfer, and such election and option are fully complied with, such Investor shall be
prohibited from exercising the other option, if applicable, and shall have no other remedies as may
be available at law, in equity or hereunder, with respect to such Prohibited Transaction or
Prohibited Transfer.
5. Legend.
5.1 Each certificate representing shares of Key Holder Stock now or hereafter owned by the Key
Holder or issued to any person in connection with a Transfer pursuant to Section 3.1 hereof shall
be endorsed with the following legend:
“THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE IS SUBJECT TO, AND IN SOME CASES PROHIBITED BY, THE
TERMS AND CONDITIONS OF A CERTAIN RIGHT OF FIRST REFUSAL AND CO-SALE
AGREEMENT BY AND AMONG THE STOCKHOLDER, THE CORPORATION AND CERTAIN HOLDERS
OF STOCK OF THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
5.2 The Key Holders agree that the Company may instruct its transfer agent to impose transfer
restrictions on the shares represented by certificates bearing the legend referred to in
Section 5.1 above to enforce the provisions of this Agreement, and the Company agrees to promptly
do so. The legend shall be removed at the request of any Key Holder following termination of this
Agreement.
6. Miscellaneous.
6.1 Conditions to Exercise of Rights. Exercise of the Investors’ rights under this Agreement
shall be subject to and conditioned upon, and the Key Holders and the Company shall use their
commercially reasonable efforts to assist each Investor in, compliance with applicable laws.
6.2 Governing Law. This Agreement shall be governed by and construed under the laws of the
State of California in all respects as applied to agreements among California residents entered
into and performed entirely within California. The parties agree that any action brought by either
party under or in relation to this Agreement, including without limitation to interpret or
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enforce any provision of this Agreement, shall be brought in, and each party agrees to and
does hereby submit to the jurisdiction and venue of, any state or federal court located in the
County of Santa Clara, California.
6.3 Amendment. Any provision of this Agreement may be amended or modified and/or the
observance thereof may be waived, or this Agreement terminated, only with the written consent of
(i) the Company, (ii) as to the Investors, persons holding at least sixty-five percent (65%) of the
Common Stock issued or issuable upon the conversion or exercise of Preferred Stock or other rights
to acquire shares of Common Stock held by the Investors and their assignees pursuant to Section 6.4
hereof, and (iii) as to the Key Holders, only by the holders of a majority of the Key Holder Stock
held by the Key Holders then providing services to the Company as an officer, employee or
consultant; provided, however, that (y) no consent of any Key Holder shall be necessary for any
amendment and/or restatement which merely includes additional holders of Preferred Stock or other
preferred stock of the Company as “Investors” as parties hereto or other employees of the Company
as “Key Holders” and parties hereto and does not otherwise materially increase such Key Holders’
obligations hereunder other than the change in the number of shares determined by Sections 2.4
and/or 2.5 hereof as a result of the addition of such additional holder; and (z) Section 2.2 of
this Agreement shall not be amended or waived without the written consent of Foundation. Any
amendment or waiver effected in accordance with clauses (i), (ii), and (iii) of this Section 6.3
shall be binding upon each Investor, its successors and assigns, the Company and each of the Key
Holders. No consent of any party hereto shall be necessary to include as a party to this Agreement
any transferee required to become a party hereto pursuant to Section 3.1 hereof.
6.4 Successors and Assigns. The provisions hereof shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors, assigns, heirs, executors and
administrators and other legal representatives.
6.5 Term. This Agreement shall continue in full force and effect from the date hereof through
the earliest of the following dates, on which date it shall terminate in its entirety:
(a) a Qualified Public Offering (as defined in the Company’s Amended and Restated Certificate
of Incorporation as in effect as of the date hereof (the “Restated Certificate”)); or
(b) the date of the closing of an Acquisition or Asset Transfer (each as defined in the
Restated Certificate).
6.6 Ownership. Each Key Holder represents and warrant that (i) he, she or it is the sole
legal and beneficial owner of those shares of Key Holder Stock that he, she or it currently holds
subject to this Agreement and that no other person has any interest (other than a community
property interest) in such shares; (ii) such shares of Key Holder Stock are not subject to any
lien, charge, pledge, claim, restrictions on transfer, mortgage, security interest, or title defect
or other encumbrance of any sort or to any rights of first refusal of any kind other than as
contemplated by this Agreement or the RSPA; (iii) this Agreement has been duly executed and
delivered by such Key Holder and constitutes the valid and binding obligation of such Key Holder
enforceable in accordance with its terms; (iv) the execution and delivery by the Key
10
Holder of, and the performance by the Key Holders of its obligations under, this Agreement
will not contravene any provision of applicable law, or any agreement or other instrument binding
upon such Key Holder or any judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Key Holder; and (v) no consent, waiver, approval, order or
authorization of, or registration, declaration or filing with, any governmental entity or any third
party, including a party to any agreement with the Key Holder, is required by or with respect to
such Key Holder in connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby. The Company shall not issue shares of its Common Stock,
or grant any option or warrant to purchase Common Stock, to any person or entity if such issuance
or grant would result in such person or entity holding at least one percent (1%) of the capital
stock of the Company (calculated on a fully-diluted as-converted to Common Stock basis) unless such
person or entity becomes a party to this Agreement (or agrees to become a party to this Agreement
upon the exercise of such option or warrant) as a Designated Common Stockholder.
6.7 Further Action. The Company shall not issue shares of its Common Stock, or grant any
option or warrant to purchase Common Stock, to any person or entity if such issuance or grant would
result in such person or entity holding at least one percent (1%) of the capital stock of the
Company (calculated on a fully diluted as-converted to Common Stock basis) unless such person or
entity becomes a party to this Agreement (or agrees to become a party to this Agreement upon the
exercise of such option or warrant) as a Key Holder.
6.8 Notices. All notices required or permitted hereunder shall be in writing and shall be
deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by
confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if
not, then on the next business day, (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the Company at 000 Xxxxxxxxxx Xxx, Xxxxxxx Xxxx, XX
00000, Attention: General Counsel and a copy (which shall not constitute notice) shall also be sent
to Fenwick & West, LLP, Silicon Valley Center, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx
00000 Attention: Xxxxxxx Xxxxxxxxx Xxxx and to each Investor and Key Holder at the address set
forth on the exhibits attached hereto or at such other address, facsimile number or electronic mail
address as the Company, Investor or Key Holder may designate by ten (10) days advance written
notice to the other parties hereto. For purposes of this Section 6.7, a “business day” means a
weekday on which banks are open for general banking business in San Francisco, California.
6.9 Severability. In the event one or more of the provisions of this Agreement should, for
any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein. In such event, the parties shall negotiate, in good faith, a legal, valid and
enforceable substitute provision which most nearly effects, to the extent legally possible, the
same economic, business or other purposes of the invalid, illegal or unenforceable provision. A
court of competent jurisdiction may replace such invalid, illegal or unenforceable provision of
this Agreement with a valid and enforceable provision that will achieve, to the
11
extent possible, the same economic, business and other purposes of the invalid, illegal or
unenforceable provision.
6.10 Attorneys’ Fees. In the event that any suit or action is instituted under or in relation
to this Agreement, including without limitation to enforce any provision in this Agreement, the
prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of attorneys and
accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
6.11 Entire Agreement. This Agreement and the Exhibits hereto, along with the Purchase
Agreement and the other documents delivered pursuant thereto, constitute the full and entire
understanding and agreement between the parties with regard to the subjects hereof and thereof and
supersede in its entirety the Prior Agreement, which shall have no further force or effect. No
party shall be liable or bound to any other in any manner by any oral or written representations,
warranties, covenants and agreements except as specifically set forth herein and therein. Each
party expressly represents and warrants that it is not relying on any oral or written
representations, warranties, covenants or agreements outside of this Agreement.
6.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
The foregoing Amended and Restated Right of First Refusal and Co-Sale
Agreement is hereby executed as of the date first above written.
| COMPANY: | ||||||
| LendingClub Corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||||
| Name: | Xxxxxx Xxxxxxxxx | |||||
| Title: | President & CEO | |||||
| KEY HOLDER: | ||||||
| /s/ Xxxxxx Xxxxxxxxx | ||||||
| Xxxxxx Xxxxxxxxx | ||||||
Signature Page to
Amended and Restated Right of First Refusal and Co-Sale Agreement
Amended and Restated Right of First Refusal and Co-Sale Agreement
The foregoing Amended and Restated Right of First Refusal and Co-Sale
Agreement is hereby executed as of the date first above written.
| INVESTOR: | ||||||||
| Foundation Capital VI, L.P. | ||||||||
| By: Foundation Capital Management Co. VI, LLC, its Manager |
||||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||||
| Name: | Xxxxxxx Xxxxxx | |||||||
| Title: | General Partner | |||||||
| Foundation Capital VI Principals Fund, LLC | ||||||||
| By: Foundation Capital Management Co. VI, LLC, its Manager |
||||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||||
| Name: | Xxxxxxx Xxxxxx | |||||||
| Title: | General Partner | |||||||
Signature Page to
Amended and Restated Right of First Refusal and Co-Sale Agreement
Amended and Restated Right of First Refusal and Co-Sale Agreement
The foregoing Amended and Restated Right of First Refusal and Co-Sale
Agreement is hereby executed as of the date first above written.
| INVESTOR: | ||||||||
| Norwest Venture Partners X, LP | ||||||||
| By: genesis vc partners x, llc, its general partner |
||||||||
| By: | /s/ Xxxxxxx Xxxxx | |||||||
| Name: | ||||||||
| Title: | ||||||||
Signature Page to
Amended and Restated Right of First Refusal and Co-Sale Agreement
Amended and Restated Right of First Refusal and Co-Sale Agreement
The foregoing Amended and Restated Right of First Refusal and Co-Sale
Agreement is hereby executed as of the date first above written.
| INVESTORS: | ||||||||||
| Canaan VII L.P. | ||||||||||
| By: Canaan Partners VII LLC | ||||||||||
| By: | /s/ Xxx X. Xxxxx | |||||||||
| Name: | ||||||||||
| Title: | ||||||||||
| Xxxxxx Xxxxxxx | ||||||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||||||
Signature Page to
Amended and Restated Right of First Refusal and Co-Sale Agreement
Amended and Restated Right of First Refusal and Co-Sale Agreement
The foregoing Amended and Restated Right of First Refusal and Co-Sale
Agreement is hereby executed as of the date first above written.
| INVESTORS: | ||||||||
| Bay Partners XI, L.P. | ||||||||
| By: Bay Management Company XI, LLC, General Partner |
||||||||
| By: | /s/ Xxxx Xxxxxxx | |||||||
| Name: | ||||||||
| Title: | ||||||||
| Bay Partners XI Parallel Fund, L.P. | ||||||||
| By: Bay Management Company XI, LLC, General Partner |
||||||||
| By: | /s/ Xxxx Xxxxxxx | |||||||
| Name: | ||||||||
| Title: | ||||||||
Signature Page to
Amended and Restated Right of First Refusal and Co-Sale Agreement
Amended and Restated Right of First Refusal and Co-Sale Agreement
The foregoing Amended and Restated Right of First Refusal and Co-Sale
Agreement is hereby executed as of the date first above written.
| INVESTOR: | ||||||||
| Xxxxxxxxxxxx Ventures IX, L.P. | ||||||||
| By: Xxxxxxxxxxxx Management Partners IX, LLC, Its Managing Partner |
||||||||
| By: | /s/ Xxxx Xxxxxx | |||||||
| Name: | ||||||||
| Title: | ||||||||
Signature Page to
Amended and Restated Right of First Refusal and Co-Sale Agreement
Amended and Restated Right of First Refusal and Co-Sale Agreement
The foregoing Amended and Restated Right of First Refusal and Co-Sale
Agreement is hereby executed as of the date first above written.
| INVESTOR: | ||||||
| Xxxxxx Xxxxxxxx | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx
|
|||||
Signature Page to
Amended and Restated Right of First Refusal and Co-Sale Agreement
Amended and Restated Right of First Refusal and Co-Sale Agreement
The foregoing Amended and Restated Right of First Refusal and Co-Sale
Agreement is hereby executed as of the date first above written.
| INVESTOR: | ||||||||
| Gold Hill Venture Lending 03, LP | ||||||||
| By: Gold Hill Venture Lending Partners 03, LLC General Partner |
||||||||
| By: | /s/ Xxx Xxxx | |||||||
| Name: | ||||||||
| Title: | ||||||||
Signature Page to
Amended and Restated Right of First Refusal and Co-Sale Agreement
Amended and Restated Right of First Refusal and Co-Sale Agreement
Exhibit A
LIST OF INVESTORS
LIST OF INVESTORS
Foundation Capital VI, L.P.
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Foundation Capital VI Principals Fund, LLC
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Norwest Venture Partners X, LP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Canaan VII L.P.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxxxxxxx Ventures, IX, LP
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Bay Partners XI, L.P.
000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Bay Partners XI Parallel Fund, L.P.
000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Xxxxxx Xxxxxxx
c/o Canaan VII L.P.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
c/o Canaan VII L.P.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Sagax Development Corp.
Xxxxxxx Xxxxxx
Xxx Xxxxxx
Xxxxxx Living Trust
F&W Investments II LLC — Series 2008
Xxxx xx Xxxxxxxxx
Pierre Latecoere
Xxxxxx X. Xxxxxx
Xxxxxx Xxxxxxxxxx
The Xxxxx and Xxxx Xxxxxxxx Family Trust
Xxxxxx Xxxxxxxx
Gold Hill Venture Lending 03, LP
Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx
Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx
Exhibit B
LIST OF KEY HOLDERS
| Shares of | ||||
| Name and Address of Key Holder | Common Stock | |||
Xxxxxx Xxxxxxxxx |
4,355,000 | |||
Schedule I
Names and Addresses of Seed Investors
Xxxxxx Xxxxxxxx
Bracket Media Group, LLC
Xxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx
Xxxxxxxxxx Xxxxxxx
Xxx-Xxxxxx Family Trust dated 7/17/1997
